GRANT V. MCAULIFFE, 41 Cal.2d 859 (Cal.

1953)

Supreme Court of California.In Bank.

GRANT V. MCAULIFFE
41 Cal.2d 859 (Cal. 1953)
WILLIAM R. GRANT, Appellant, v.
FRANK
H.
McAULIFFE,
as
Administrator,etc., Respondent.RUSSELL
M. MANCHESTER, Appellant, v. FRANK
H. McAULIFFE, as Administrator,etc.,
Respondent.DOYLE
O.
JENSEN,
Appellant, v. FRANK H. McAULIFFE, as
Administrator, etc.,Respondent.
Docket Nos. Sac. 6416, 6417, 6418.
Supreme Court of California.In Bank.
December 23, 1953. *860
APPEALS from orders of the Superior Court of
Plumas County abating actions on claims against an
estate. William M. Macmillan, Judge. Orders reversed.
J. Oscar Goldstein, P.M. Barceloux, Burton J. Goldstein and Goldstein, Barceloux Goldstein for Appellants.
Honey Mayall and John J. Hurley for Respondent.

*861

TRAYNOR, J.
On December 17, 1949, plaintiffs W.R. Grant and
R.M. Manchester were riding west on United States
Highway 66 in an automobile owned and driven by
plaintiff D.O. Jensen. Defendant's decedent, W.W.
Pullen, was driving his automobile east on the same
highway. The two automobiles collided at a point ap-

proximately 15 miles east of Flagstaff, Arizona.

Jensen's automobile was badly damaged, and Jensen,
Grant, and Manchester suffered personal injuries.
Nineteen days later, on January 5, 1950, Pullen died
as a result of injuries received in the collision. Defendant McAuliffe was appointed administrator of his estate and letters testamentary were issued by the Superior Court of Plumas County. All three plaintiffs, as
well as Pullen, were residents of California at the time
of the collision. After the appointment of defendant,
each plaintiff presented his claim for damages. Defendant rejected all three claims, and on December 14,
1950, each plaintiff filed an action against the estate of
Pullen to recover damages for the injuries caused by
the alleged negligence of the decedent. Defendant filed
a general demurrer and a motion to abate each of the
complaints. The trial court entered an order granting
the motion in each case. Each plaintiff has appealed.
The appeals are *862 based on the same ground and
have therefore been consolidated.
The basic question is whether plaintiffs' causes of action against Pullen survived his death and are maintainable against his estate. The statutes of this state
provide that causes of action for negligent torts survive the death of the tort feasor and can be maintained
against the administrator or executor of his estate.
(Civ. Code, 956; Code Civ. Proc., 385; Prob. Code,
573, 574.) Defendant contends, however, that the
survival of a cause of action is a matter of substantive
law, and that the courts of this state must apply the
law of Arizona governing survival of causes of action.
There is no provision for survival of causes of action
in the statutes of Arizona, although there is a provision that in the event of the death of a party to a pending proceeding his personal representative can be sub-

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GRANT V. MCAULIFFE, 41 Cal.2d 859 (Cal. 1953)

stituted as a party to the action (Arizona Code, 1939,
21-534), if the cause of action survives. (Arizona
Code, 1939, 21-530.) The Supreme Court of Arizona
has held that if a tort action has not been commenced
before the death of the tort feasor a plea in abatement
must be sustained. ( McClure v. Johnson, 50 Ariz. 76, 82

143 Mass. 301, 305-306 [9 N.E. 815]; Hyde v. Wabash,

St. L. Pac. Ry. Co., 61 Iowa 441, 444 [16 N.W. 351,
47 Am.St.Rep. 820] [but see Gordon v. Chicago, R.I. P.
Ry. Co., 154 Iowa 449, 451 [134 N.W. 1057, Ann.Cas.
1915B 113]]; Mexican Cent. Ry. Co. v. Goodman, 20

[ 69 P.2d 573]. See, also, McLellan v. Automobile Ins. Co.

Tex.Civ.App. 109[ 20 Tex. Civ. App. 109], 110 [ 48

S.W. 778] [but see Texas Pac. Ry. Co. v. Richards, 68

of Hartford, Conn., 80 F.2d 344.)

Tex. 375, 378 [4 S.W. 627]]; Needham v. Grand Trunk

[1] Thus, the answer to the question whether the caus-

es of action against Pullen survived and are maintainable against his estate depends on whether Arizona or
California law applies. In actions on torts occurring
abroad, the courts of this state determine the substantive matters inherent in the cause of action by adopting as their own the law of the place where the tortious acts occurred, unless it is contrary to the public
policy of this state. ( Loranger v. Nadeau, 215 Cal. 362
[ 10 P.2d 63, 84 A.L.R. 1264].) [2] "[N]o court can en-

force any law but that of its own sovereign, and, when
a suitor comes to a jurisdiction foreign to the place of
the tort, he can only invoke an obligation recognized
by that sovereign. A foreign sovereign under civilized
law imposes an obligation of its own as nearly homologous as possible to that arising in the place where the
tort occurs." (Learned Hand, J., in Guinness v. Miller,
291 F. 769, 770.) [3] But the forum does not adopt

as its own the procedural law of the place where the

tortious acts occur. It must, therefore, be determined
whether survival of causes of action is procedural or
substantive for conflict of laws purposes. *863
This question is one of first impression in this state.
The precedents in other jurisdictions are conflicting.
In many cases it has been held that the survival of a
cause of action is a matter of substance and that the
law of the place where the tortious acts occurred must
be applied to determine the question. ( Burg v. Knox,
334 Mo. 329, 335-338 [ 67 S.W.2d 96]; Chubbuck v.
Holloway, 182 Minn. 225, 227-230 [ 234 N.W. 314,
868], followed in Kerston v. Johnson, 185 Minn. 591,
593 [ 242 N.W. 329]; Davis v. New York N.E.R. Co.,

Ry. Co., 38 Vt. 294, 307-311; Ormsby v. Chase, 290 U.S.

387, 388 [54 S.Ct. 211, 78 L.Ed. 378], followed in
McIntosh v. General Chem. Defense Corp., 67 F. Supp. 63,
64, Woollen v. Lorenz, 98 F.2d 261, 262 [68 App.D.C.
389], Gray v. Blight, 112 F.2d 696, 697-698, and Muir
v. Kessinger, 35 F. Supp. 116, 117; Orr v. Ahern, 107
Conn. 174, 178-180 [139 A. 691]; Potter v. First Nat.
Bank, 107 N.J. Eq. 72, 74-75 [ 151 A. 546], followed in
Friedman v. Greenberg, 110 N.J.L. 462, 464-466 [ 166
A. 119], and Rathgeber v. Sommerhalder, 112 N.J.L. 546,
548-549 [ 171 A. 835]; Sumner v. Brown, 312 Pa. 124,
127 [ 167 A. 315].) The Restatement of the Conflict
of Laws, section 390, is in accord. It should be noted,
however, that the majority of the foregoing cases were
decided after drafts of the Restatement were first circulated in 1929. Before that time, it appears that the
weight of authority was that survival of causes of action is procedural and governed by the domestic law
of the forum. ( Austin v. Pittsburg, C., C., St. L. Ry. Co.,
122 Ky. 304, 309-310 [91 S.W. 742]; Baltimore Ohio R.
Co. v. Joy, 173 U.S. 226, 231 [19 S.Ct. 387, 43 L.Ed.
677]; Clough v. Gardiner, 111 Misc. 244, 248-249 [182
N.Y.S. 803]; Herzog v. Stern, 264 N.Y. 379, 383-384 [
191 N.E. 23], followed in Demuth v. Griffin, 253 App.
Div. 399, 401 [2 N.Y.S.2d 2], Domres v. Storms, 236
App. Div. 630 [260 N.Y.S. 335], Silverman v. Rappaport, 165 Misc. 543, 545-546 [300 N.Y.S. 76], Taynton
v. Vollmer, 242 App. Div. 854 [275 N.Y.S. 284]; Gordon v. Chicago, R.I. P. Ry. Co., 154 Iowa 449, 451 [134
N.W. 1057]; In re Vilas' Estate, 166 Or. 115, 123-124 [
110 P.2d 940]; Martin v. Baltimore Ohio R. Co., 151 U.S.
673, *864 692-693 [14 S.Ct. 533, 38 L.Ed. 311]; Martin v. Wabash R. Co., 142 F. 650, 651 [73 C.C.A. 646, 6
Ann.Cas. 582]; Page v. United Fruit Co., 3 F.2d 747, 754;

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GRANT V. MCAULIFFE, 41 Cal.2d 859 (Cal. 1953)

Matter of Killough, 148 Misc. 73, 85-89 [265 N.Y.S.
301]; Texas Pac. Ry. Co. v. Richards, 68 Tex. 375, 378
[4 S.W. 627]. See, also, Barker v. Ladd, Fed.Cas. 990
[3 Sawy. 44]; Gaskins v. Bonfils, 4 F. Supp. 547, 551;
Luster v. Martin, 58 F.2d 537, 539-540; Portland Gold

the injured person, and provide for its enforcement

by or against the personal representative of the deceased. [6] They are analogous to statutes of limitation, which *865 are procedural for conflict of laws

Mining Co. v. Stratton's Independence, Ltd., 196 F. 714,

purposes and are governed by the domestic law of the

forum. ( Biewend v. Biewend, 17 Cal.2d 108, 114 [ 109

716-717; Whitten v. Bennett, 77 F. 271, 273; Winslow v.

P.2d 701, 132 A.L.R. 1264].) [7] Thus, a cause of ac-

Domestic Engineering Co., 20 F. Supp. 578, 579.) Many

of the cases, decided both before and after the Restatement, holding that survival is substantive and must
be determined by the law of the place where the tortious acts occurred, confused the problems involved
in survival of causes of action with those involved in

tion arising in another state, by the laws of which an

action cannot be maintained thereon because of lapse
of time, can be enforced in California by a citizen
of this state, if he has held the cause of action from
the time it accrued. (Code Civ. Proc., 361; Stewart
v. Spaulding, 72 Cal. 264, 266 [13 P. 661]. See, also,

causes of action for wrongful death. (See, for example,

the precedents on which the courts relied in Hyde v.

Biewend v. Biewend, supra; and Western Coal Mining Co.

Wabash, St. L. Pac. Ry. Co., supra, 61 Iowa 441; Orr v. Ah-

685].)

v. Jones, 27 Cal.2d 819, 828 [167 P. 719, 164 A.L.R.

ern, supra, 107 Conn. 174; and Ormsby v. Chase, supra,

290 U.S. 387.) The problems are not analogous. (See
Schumacher, " Rights of Action Under Death and Survival
Statutes," 23 Mich.L.Rev. 114, 116-117, 124-125.) [4] A

cause of action for wrongful death is statutory. It is a

new cause of action vested in the widow or next of
kin, and arises on the death of the injured person. Before his death, the injured person himself has a separate and distinct cause of action and, if it survives,
the same cause of action can be enforced by the personal representative of the deceased against the tort
feasor. [5] The survival statutes do not create a new
cause of action, as do the wrongful death statutes. (
Needham v. Grand Trunk Ry. Co., supra, 38 Vt. 294,
303-306; Austin v. Pittsburg, C., C., St. L. Ry. Co., supra,
122 Ky. 304, 308-310; Martin v. Baltimore Ohio R. Co.,
supra, 151 U.S. 673, 696, 698, 701; Patton v. Brady, 184
U.S. 608, 612-615 [22 S.Ct. 493, 46 L.Ed. 713]; Spring
v. Webb, 227 F. 481, 484-485; 1 C.J.S., p. 211; Schumacher, supra, 23 Mich.L.Rev. 114, 124-125. The English courts have reached the same result in construing similar statutes: Davies v. Powell Dufferin Assoc. Collieries, Ltd., A.C. 601, 610-616; Rose v. Ford, A.C. 826,
852, 855-856. See, also, Bradshaw v. Lancashire and
Yorkshire Ry. Co., 10 C.P. 189, 192-193.) They merely prevent the abatement of the cause of action of

Defendant contends, however, that the characterization of survival of causes of action as substantive or
procedural is foreclosed by Cort v. Steen, 36 Cal.2d 437,
442 [ 224 P.2d 723], where it was held that the California survival statutes were substantive and therefore
did not apply retroactively. The problem in the present proceeding, however, is not whether the survival
statutes apply retroactively, but whether they are substantive or procedural for purposes of conflict of laws.
[8] "`Substance' and `procedure' . . . are not legal concepts of invariable content" ( Black Diamond Steamship

Corp. v. Stewart Sons, 336 U.S. 386, 397 [69 S.Ct. 622,
93 L.Ed. 754]. See, also, Guaranty Trust Co. v. York, 326
U.S. 99, 109 [65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R.
1231]; Sampson v. Channell, 110 F.2d 754, 756, 758; Estate of Caravas, 40 Cal.2d 33, 41-42 [ 250 P.2d 593];
W.W. Cook, The Logical and Legal Bases of the Conflict of Laws (1942), c. 6: "Substance and Procedure"),
and a statute or other rule of law will be characterized
as substantive or procedural according to the nature
of the problem for which a characterization must be
made.
[9] Defendant also contends that a distinction must be
drawn between survival of causes of action and re-

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GRANT V. MCAULIFFE, 41 Cal.2d 859 (Cal. 1953)

vival of actions, and that the former are substantive
but the latter procedural. On the basis of this distinction, defendant concludes that many of the cases cited above as holding that survival is procedural and is
governed by the domestic law of the forum do not
support this position, since they involved problems of
"revival" rather than "survival." The distinction urged
by defendant is not a valid one. Most of the statutes involved in the cases cited provided for the "revival" of a
pending proceeding by or against the personal representative of a party thereto should he die while the action is still *866 pending. But in most "revival" statutes,
substitution of a personal representative in place of a
deceased party is expressly conditioned on the survi1
val of the cause of action itself. [10] If the cause of action dies with the tort feasor, a pending proceeding
must be abated. A personal representative cannot be
substituted in the place of a deceased party unless the
cause of action is still subsisting. In cases where this
substitution has occurred, the courts have looked to
the domestic law of the forum to determine whether
the cause of action survives as well as to determine
whether the personal representative can be substituted as a party to the action. ( Gordon v. Chicago, R.I.
P. Ry. Co., supra, 154 Iowa 449, 451; Martin v. Baltimore Ohio R. Co., supra, 151 U.S. 673, 692; Martin v.
Wabash R. Co., supra, 142 F. 650, 651; Baltimore Ohio R.
Co. v. Joy, supra, 173 U.S. 226, 231.) Defendant's contention would require the courts to look to their local
statutes to determine "revival" and to the law of the
place where the tort occurred to determine "survival,"
but we have found no case in which this procedure
was followed.
1. For example, Code Civ. Proc., 385: "An
action or proceeding does not abate by the
death, or any disability of a party . . . if the cause
of action survive or continue." (Italics added.) See
also 28 U.S.C.A., Rule 25(a)(1) [leg. hist.,
U.S.Rev.Stat., 955 (1874); Judiciary Act of
1789, 31]: "If a party dies and the claim is not
thereby extinguished, the court . . . may order
substitution . . ." of the personal representa-

tive. (Italics added.) The exact language of

Rule 25(a)(1) is repeated in Arizona Code,
1939, 21-530.

Since we find no compelling weight of authority for

either alternative, we are free to make a choice on the
merits. [11] We have concluded that survival of causes of action should be governed by the law of the forum. [12] Survival is not an essential part of the cause

of action itself but relates to the procedures available

for the enforcement of the legal claim for damages.
Basically the question is one of the administration of
decedents' estates, which is a purely local proceeding.
The problem here is whether the causes of action that
these plaintiffs had against Pullen before his death survive as liabilities of his estate. Section 573 of the Probate Code provides that "all actions founded . . . upon any liability for physical injury, death or injury to
property, may be maintained by or against executors
and administrators in all cases in which the cause of
action . . . is one which would not abate upon the
death of their respective testators or intestates. . . ."
Civil Code, section 956, provides that *867 "A thing in
action arising out of a wrong which results in physical
injury to the person . . . shall not abate by reason of the
death of the wrongdoer . . .," and causes of action for
damage to property are maintainable against executors and administrators under section 574 of the Probate Code. (See Hunt v. Authier, 28 Cal.2d 288, 292-296
[ 169 P.2d 913, 171 A.L.R. 1379]; Cort v. Steen, supra,
36 Cal.2d 437, 439-440.) Decedent's estate is located in
this state, and letters of administration were issued to
defendant by the courts of this state. [13] The responsibilities of defendant, as administrator of Pullen's estate, for injuries inflicted by Pullen before his death
are governed by the laws of this state. This approach
has been followed in a number of well-reasoned cases.
( Matter of Killough, supra, 148 Misc. 73, 85-89; Herzog

v. Stern, supra, 264 N.Y. 379; In re Vilas' Estate, supra,

166 Or. 115; Martin v. Baltimore Ohio R. Co., supra, 151
U.S. 673; Whitten v. Bennett, supra, 77 F. 271, 273.) It
retains control of the administration of estates by the
local Legislature, and avoids the problems involved

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GRANT V. MCAULIFFE, 41 Cal.2d 859 (Cal. 1953)

in determining the administrator's amenability to suit
under the laws of other states. [14] The common law
doctrine actio personalis moritur cum persona had its origin in a penal concept of tort liability. (See Prosser,
Law of Torts 950-951; Pollock, The Law of Torts (10th
ed.) 64, 68.) Today, tort liabilities of the sort involved
in these actions are regarded as compensatory. [15]

When, as in the present case, all of the parties were

residents of this state, and the estate of the deceased
tort feasor is being administered in this state, plaintiffs' right to prosecute their causes of action is governed by the laws of this state relating to administration of estates.
The orders granting defendant's motions to abate are
reversed, and the causes remanded for further proceedings.
Gibson, C.J., Shenk, J., and Carter, J., concurred.

EDMONDS, J.
I concur in the conclusion that the order granting the
defendant's motion to abate should be affirmed.

SCHAUER, J.
I dissent. In Cort v. Steen (1950), 36 Cal.2d 437, 442 [
224 P.2d 723], this court held that under the doctrine
of nonsurvivability the abatement of an action by the
death of the injured person through the tort feasor's
act or otherwise, or by the death of the tort feasor,
abates the wrong as well; that the effect of a survival
statute is to create a right or cause of action rather
than to either continue an existing right or revive or
extend a remedy theretofore accrued *868 for the redress of an existing wrong; and that consequently a
survival statute enacted after death of the tort feasor
did not apply to the tort or cause of action involved.
And more recently, in Estate of Arbulich (1953), ante,
pp. 86, 88-89 [ 257 P.2d 433], we recognized the rule

that the burden of proof provisions of the Probate

Code sections (259 et seq.) dealing with reciprocal inheritance rights are not merely procedural in nature,
but, rather, are substantive statutes regulating succession, and that consequently such rights are to be determined by the law as it existed on the date of decedent's death. (See, also, Estate of Giordano (1948), 85
Cal.App.2d 588, 592, 594 [ 193 P.2d 771].)
Irreconcilably inconsistent with the cases cited in the
preceding paragraph, the majority now hold that "Survival is not an essential part of the cause of action
itself but relates to the procedures available for the enforcement of the legal claim for damages. Basically the
question is one of the administration of decedents' estates, which is a purely local proceeding." If the above
stated holding is to prevail, then for the sake of the
law's integrity and clarity, and in fairness to lower
courts and to counsel, the cited cases should be expressly overruled. But even more regrettable than the
failure to either follow or unequivocally overrule the
cited cases is the character of the "rule" which is now
promulgated: the majority assert that henceforth "a
statute or other rule of law will be characterized as
substantive or procedural according to the nature of
the problem for which a characterization must be
made," thus suggesting that the court will no longer
be bound to consistent enforcement or uniform application of "a statute or other rule of law" but will instead apply one "rule" or another as the untrammeled
whimsy of the majority may from time to time dictate,
"according to the nature of the problem" as they view
it in a given case. This concept of the majority strikes
deeply at what has been our proud boast that ours was
a government of laws rather than of men.
Although any administration of an estate in the courts
of this state is local in a procedural sense, the rights
and claims both in favor of and against such an estate
are substantive in nature, and vest irrevocably at the
date of death. ( Estate of Patterson (1909), 155 Cal. 626,
634 [ 102 P. 941, 132 Am. St.Rep. 116, 18 Ann.Cas.
625, 26 L.R.A.N.S. 654].) Since this court has clearly

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GRANT V. MCAULIFFE, 41 Cal.2d 859 (Cal. 1953)

held that a right or cause of action created by a survival statute is likewise substantive, rather than procedural, we should hold, if we would follow the law, *869
that the trial court properly granted defendant's motions to abate.

Spence, J., concurred.

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